AUSTIN — Abortion rights groups urged a state district judge on Wednesday to declare Texas’ new six-week abortion ban unconstitutional, arguing that handing over enforcement to private citizens raises a host of legal problems.

The plaintiffs are also asking the court to stop Texas Right to Life from suing them under the new law, known as Senate Bill 8. The anti-abortion group was behind a high-profile tipline that sought to ferret out potential violations, but it has not brought any private-citizen enforcement actions to date.

“Our clients’ interest is being affected right now, they are having to change their behavior because SB8 unconstitutionally exposes them to financial ruin,” said Elizabeth Myers, a Dallas attorney representing social workers, organizations that help people access abortion and others.

The day-long hearing marks the latest legal battle over the state’s restrictive abortion law, which allows private citizens to sue anyone who “aids or abets” an abortion performed after the detection of fetal cardiac activity. Successful litigants can receive a minimum of $10,000 plus their attorneys fees.

Lawyers for Texas Right to Life and its legislative director, John Seago, contend their clients are the wrong people to sue and have done nothing wrong. Even if the court grants a permanent injunction against the anti-abortion group, attorney Heather Hacker noted, there are millions of others who could still sue.

“They will not change their behavior as a result of any relief this court could grant,” she said.


Still, attorneys for the abortion providers said a favorable decision voiding the law and preventing lawsuits by Texas Right to Life — one of the new law’s biggest promoters — would be meaningful.

The 14 legal challenges targeting Texas Right to Life, brought by Planned Parenthood, organizations that fund abortions, social workers, doctors and attorneys, have been consolidated into one case.

David Peeples, a retired magistrate judge presiding over the case, seemed receptive to concerns that the law’s novel enforcement scheme could be applied far beyond abortion.

“The potential of a set of procedural weapons that might be used in other contexts,” Peeples said, “that’s got to be on people’s minds.”

Peeples said he will issue a decision sooner rather than later. It will almost certainly be appealed.

The U.S. Supreme Court is weighing a legal challenge, but it’s not clear when the justices will act. Since taking effect on Sept. 1, the law has cut abortions in Texas in half, one study found.


Outside the courthouse in Austin on Wednesday, abortion rights advocates said the only people who can get an abortion now must travel out of state and spend hundreds of dollars to do it.

“When you allow a country to take away one of your rights, they can take away all of your rights,” said Marsha Jones, executive director of the Afiya Center, which is a plaintiff in the lawsuit.

Wednesday’s hearing focused primarily on the novel enforcement mechanism in the first real debate over the law’s merits.

Attorneys for the plaintiffs argued the law violates people’s right to privacy by allowing their abortion choice to become the subject of litigation without their consent. Another problem they pointed to is that the law allows anyone to sue without showing they’ve been harmed.

Out-of-state attorneys brought the first legal action under the new law against a San Antonio physician who wrote an op-ed in the Washington Post admitting he allegedly performed an abortion on a woman who was more than six weeks pregnant.

“For a private cause of action, which is what defendants keep saying this is, you need an injury,” Myers said. “There is no harm required here. Anybody can just file a lawsuit, prove an abortion happened and get $10,000 or more and fees.”

Lawyers for Texas Right to Life generally dismissed those arguments, but spent much of the hearing arguing that their clients shouldn’t be the ones getting sued.

Seago, Hacker said, is “just a man who happens to be pro-life” and is having to defend a state law because “the plaintiffs sued him rather than somebody else who’s responsible for that.”

If he loses, “the plaintiffs are asking Mr. Seago to pay hundreds of thousands of dollars in attorneys’ fees because the state enacted what the plaintiffs think is an unconstitutional law,” she said. “That’s just unfair.”

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